Regina v Ronen

[2004] NSWSC 1294

Reported Decision: 211 FLR 310

Supreme Court

CITATION:	Regina v Ronen & Ors [2004] NSWSC 1294 revised - 26/04/2005
HEARING DATE(S):
JUDGMENT DATE:	28 April 2004
JUDGMENT OF:	Whealy J at 1
DECISION:	In my view, the interest of justice requires that the trial proceed without further delay and without fragmentation of the trial process. This I propose to do unless an order is made by the High Court staying the continuance of the trial.
CATCHWORDS:	Trial by Jury - - Jury Act 1977 (NSW) - Do the provisions of the Act impair the fundamentals of a trial by jury (s 80) Australian Constitution)?
LEGISLATION CITED:	Crimes Act 1914 Jury Act 1977 (NSW) Judiciary Act 1903 Commonwealth of Australia Constitution Act
CASES CITED:	Johns v The Queen (1979) 141 CLR 409 at 418 Brownlee v The Queen (2001) 207 CLR 278, 288-290; 296-303 Katsuno v The Queen (1999) 199 CLR 40 at 65 (52) Cheatle v The Queen (1993) 177 CLR 541 at 562 R v Baum (1929) 27 (SR) NSW 401 R v Cripps (1) WN 112. Ng v The Queen [2003] HCA 20 noted, at para 9
PARTIES :	Regina v Ida Ronen Regina v Nitzan Ronen Regina v Izhar Ronen
FILE NUMBER(S):	SC 70222/03; 70032/03; 70223/03
COUNSEL:	Mr T. Game SC; Ms S. McNaughton - Crown Mr R. Richter QC; Mr N. Rosenbaum - Accused Ida Ronen Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr P. Jones - Accused Izhar Ronen
SOLICITORS:	Ms P. Musgrave - Cth DPP Watsons Solicitors - Accused

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

WEDNESDAY 28 April 2004

70032/03 - REGINA v Nitzan RONEN
70222/03 - REGINA v Ida RONEN
70223/03 - REGINA v Izhar RONEN

JUDGMENT - Application for ruling that certain provisions of the Jury Act 1977 are inconsistent with the requirements of s 80 of the Constitution

1 HIS HONOUR: On Friday 16 April 2004, the Court was met with an unanticipated application made by Mr Richter QC on behalf of the accused. The application was that the accused be supplied with the names and occupation of panel members prior to the process of jury selection.

2 It is necessary to say something about the circumstances relating to the making of the application before commenting on its outcome. On 2 February 2004 an indictment was presented against each of the accused and each was arraigned on that occasion. There are two charges in the indictment. The first is a charge that Ida Ronen, Nitzan Ronen and Izhar Ronen between about 1 October 1991 and 15 September 1995, at Sydney in the State of New South Wales, did conspire with each other to defraud the Commonwealth, namely the Commissioner of Taxation, contrary to s 86A of the Crimes Act 1914. The second charge is that Ida Ronen, Nitzan Ronen and Izhar Ronen, between about 16 September 1995 and 5 February 2001, at Sydney in the State of New South Wales, did conspire with each other and George Segal to commit an offence against s 29D of the Crimes Act 1914, that is to defraud the Commonwealth, namely the Commissioner of Taxation, contrary to s 86(2) of the Crimes Act 1914.

3 There is but one conspiracy alleged by the Crown. It is, however, represented by two counts in the indictment in order to reflect a change made to the name and precise wording of the section under which the first count was drafted. This change came into effect at about the time of the commencement date of the second count.

4 An extensive number of pre-trial applications were dealt with between 2 February and 16 April 2004. These applications ranged over a wide number of topics and involved approximately 28 days of hearing. The length of these procedures, and the necessity to give decisions in relation to each of them, required the postponement of the anticipated date for commencement of the trial proper. The trial itself had been estimated to proceed over 3 to 4 months. Ultimately, it was agreed between the parties that the empanelment of the jury and the placement of the accused in charge of the jury should occur on Monday 19 April 2004. It was against the background of this situation that the present application was made on the afternoon of Friday, 16 April 2004. For the reasons stated in my decision given on that day, I determined that the provisions of the Jury Act 1977 prohibited the grant of the application made by Mr Richter QC on behalf of the accused. Since 1998, the Jury Act has required the utilization of a system of referring to jurors by identification numbers only. It was my view that the application made by Mr Richter was not permitted by the Act and was indeed, prohibited by the Act. I placed special reliance on s 29, s 37, s 38, s 48, s67A and s 68 of the Act.

5 On Monday 19 April 2004, shortly before the members of the jury panel were brought to court, Mr Richter QC informed the Court that notice of a constitutional matter had been sent to the various Attorneys General for the Commonwealth, States and Territories pursuant to the requirements of s 78B of the Judiciary Act 1903. The notice informed the recipients that -

“The matter under the Constitution or involving its interpretation is whether the Jury Act 1977 (NSW) or any provisions thereof preventing the supply to counsel for the 3 accused of the names and/or occupations of prospective jurors prior to the commencement of jury selection are invalid by reason of s 80 of the Constitution.”

6 In those circumstances, the provisions of s 78B of the Judiciary Act 1903 obliged the Court to refrain from proceeding in the matter for the time being. The jury panel, comprising of approximately 70 persons, was sent away until Monday, 3 May 2004. After discussion with the parties, the matter of the constitutional issue was stood over until Tuesday, 27 April 2004, it being envisaged that on that day, if necessary, submissions could be made and an urgent decision given, should that be necessary, in relation to the issue raised by the s 78B notice.

7 On 27 April 2004, the Solicitor-General, Mr Sexton SC and Ms Pepper appeared to intervene on behalf of the Attorney General for NSW. Mr Sexton identified the fundamental question as being: whether the relevant provisions of the Jury Act impaired the fundamentals of trial by jury pursuant to s 80 of the Constitution? The Attorney General submitted that the relevant provisions did not possess this character.

8 The Solicitor-General conceded, for present purposes, that the right of challenge to potential jurors, whether peremptorily or for cause, was a fundamental aspect of s 80 of the Constitution. He argued, however, that ss 29, 37, 48, 76A and 68 of the Jury Act do not have the effect of limiting the right of an accused to a fair trial. The jury which ultimately delivers its verdict will be unanimous, impartial, random and representative. Against the background of these continuing entrenched features, Mr Sexton submitted that the relevant provisions of the Jury Act are to be seen as no more than a departure from the procedural aspects of an accused’s right to challenge in New South Wales. This procedural change does not involve a departure from the mandated requirements of trial by jury under s 80 so as to render those provisions unconstitutional. In this regard, the relevant provisions deal with what Gleeson CJ and McHugh J in Brownlee v The Queen (2001) 207 CLR 278 at 286 (12) described as “incidents of the procedure” rather than essential attributes. Mr Sexton emphasised that their Honours had said: -

“One of the most significant aspects of the history of trial by jury before, and up to, the time of Federation is that it shows that the incidents of the procedure never have been immutable; they are constantly changing. Indeed trial by jury did not come to the Australian colonies as part of the common law upon European settlement. It was introduced into each of the colonies by legislation and the legislation varied.”

9 In his oral submissions, the Solicitor-General suggested that there were two permissible methods of approach to the question: -

(i) Even were it to be found that the refusal to supply the names and occupations of potential jurors detracted in some degree from the right of challenge – a proposition which Mr Sexton did not embrace – there would nonetheless be the possibility, without breach of the Constitution, to take into the balance in legislation the need to make adjustments to the rights of both the accused and the Crown in favour of the rights of the community generally.

(ii) On the other hand, if the “information” prohibited did not in truth provide any real assistance to the accused – a proposition which senior counsel did embrace – this would be a powerful argument against finding that the “information” is to be regarded as irreducible minimum material required to provide an effective challenge in selection of the jury.

10 On the same day, Mr Hammerschlag SC appeared with Ms McNaughton on behalf of the Commonwealth Direct of Public Prosecutions to answer the arguments of the accused. Senior Counsel placed before the Court both a historical and analytical examination of the issue. It was his submission that the issue properly stated was this: does the non-provision to an accused at his request of the names and occupations of prospective jurors have the consequence that a trial without disclosure of those matters is not trial by jury pursuant to s 80 of the Constitution? Mr Hammerschlag argued that the answer to the question was “No”. It was his principal submission that there existed no immutable right, as part of the challenge to a potential juror, to know that person’s name and occupation. Neither an examination of the history of trial by jury nor of decided cases dealing with the essential features of trial by jury pointed to the existence of such a right. Consequently, the negation of an entitlement to the name of a potential juror did not deprive an accused person of an effective right of challenge.

Submissions on behalf of the accused

11 The issue for determination has been succinctly stated by Mr Richter in the following manner: are the relevant provisions of the Jury Act 1977 (NSW) invalid insofar as they purport to apply to a trial by jury in Federal jurisdiction? It was submitted on behalf of the accused that the statutory prohibitions in the Jury Act breach the constitutional guarantee contained in s 80 of the Commonwealth of Australia Constitution Act. This section of the Constitution is in the following terms: -

“ The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State, the trial shall be held at such place or places as the Parliament prescribes.”

12 The argument on behalf of the accused finds its origin in the recognition of the importance of challenges as central to a trial by jury. Reliance was placed upon remarks of Barwick CJ in Johns v The Queen (1979) 141 CLR 409 at 418: -

“ The right of challenge, and particularly the right of peremptory challenge, lies at the very root of the jury system as it now exists. That the challenge is peremptory means that the accused need not in any wise justify his challenge. It need represent no more than his personal objection to be tried by the person whom he sees before him and whose name he has heard.”

And the further statement at 419:

“I t is incontestable that the denial of the applicant’s right of challenge vitiates the proceedings on the indictment. It is settled that if an accused’s challenge is improperly disallowed or not given effect, the subsequent proceedings cannot yield a lawful conviction: they are said to be absolutely void:” (references omitted).

13 Against the background of these remarks, Mr Richter’s submissions recognised that, in the search for the meaning and reach of s 80, what was clearly involved was a search for the irreducible minimum characteristics of trial by jury. Among those characteristics which have been held to be “essential” and irreducible elements of a trial by jury were, Mr Richter acknowledged, the notions of unanimity, independence and random selection. Brownlee v The Queen (2001) 207 CLR 278, 288-290; 296-303. To these might also be added the characteristic that the jury should be representative (Katsuno v The Queen (1999) 199 CLR 40 at 65 (52).

14 Mr Richter’s arguments conceded that a number of the characteristic features (as distinct from the essential attributes) of the jury as an Institution in 1900 were not, and could not have been intended to be, immutable. Such characteristics included, for example, the fact that, at that historical moment, jurors were required to be male and possessed of significant property as a qualification. (Cheatle v The Queen (1993) 177 CLR 541 at 562). Senior counsel argued, however, that, to the time of Federation, the identification of potential jurors by name and occupation was integral to the knowledge necessary to inform a decision to challenge.

15 In the context of these matters, Mr Richter argued that s 80 could never have contemplated that “trial by jury” would be trial by persons totally unknown and unknowable save as to numbers. Just as a person facing trial by judge alone is entitled to know the identity of his judge, so also is an accused entitled to know the identity of the judges of fact in a jury trial. The crux of his submission was that the existence of the right to challenge – for so long as it constitutes an essential feature of trial by jury, - of necessity carries with it the minimum requirement that some fundamental level of information be available to inform that choice; and that this is so whether the challenge be peremptory or for cause. The provisions of the Jury Act (NSW) that informed my decision of 16 April 2004 to conclude that the accused was not entitled to be supplied with the names and occupations of the jury panel, according to Mr Richter, were, in that sense, contrary to the essential notions of trial by jury as referred to in s 80.

Response

16 The starting point to the response to the arguments on both sides is the recognition that a State Court is given jurisdiction with respect to persons who are charged with offences against the law of the Commonwealth under s 68(2) of the Judiciary Act 1903. This jurisdiction is subject to s 68 and s 80 of the Constitution. The second point is that the laws of a State, including its procedural laws for the trial of persons on indictment, apply to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the State Court. The application of these procedural laws is, however, subject to s 68 itself.

17 As a consequence, the precise question is, not one of invalidity of laws as postulated by the submissions made on behalf of the accused; but whether the trial process would necessarily miscarry because a trial held without disclosure of the names and occupations of jurors would not be, if Mr Richter’s arguments are correct, a trial held in accordance with the command in s 80. Nevertheless, it is both convenient and appropriate to approach the issues which have arisen by asking whether the relevant provisions of the Jury Act 1977 are compatible with the command in s 80 of the Constitution. (Brownlee v The Queen at 296 (51)).

18 In my view the submissions made on behalf of the accused are, upon analysis, without substance. My reasons are these: first, while there is no doubt that the right of challenge, in all its manifestations, is an important feature of trial by jury, there is nothing in the Jury Act that prohibits challenge. The Act preserves the right of challenge both to the array and to the polls of jurors (s 41). Both peremptory challenges (s 42) and challenge for cause are available (ss 43 and 44).

19 Secondly, in my view, the fact that jurors are referred to by identification numbers rather than by name does not curtail in any significant manner, or at all, the exercise of the right of challenge. Of course, there can be no doubt, as a matter of common sense, that the more information the accused has the more informed his decision as to whether to challenge or not will be. The notion, however, implicit in the submissions of counsel for the accused, that the right of challenge carries with it a minimum requirement for a body of fundamental information to enable the challenge to be made on an informed basis is not convincing. The accused has before him the panel member. He or she may make a reasonably shrewd estimate of matters relevant to the decision to challenge. They will be based on the appearance, the sex, the age, the dress and the demeanour of the panel member. What information would the name of the panel member give the accused that was not otherwise available to him through the intelligent use of his eyes? Indeed, as I have said elsewhere, the supply of the name of the panel member might give a positively misleading impression. At the very least, it might confuse the impression gained from an otherwise insightful appreciation of the appearance and demeanour of a panel member.

20 This is also the case with the argument related to the occupation of a panel member. Again, such information may, in theory, be of assistance. But why is it necessary to regard it as a fundamental minimum necessity to sustain the integrity of the exercise of an informed challenge? Take the statement of an occupation, for example, as a clerk; or as a public servant; or a shop assistant, or as a retired person. Such descriptions will give little guidance that cannot be obtained from acute observation. In addition, such labelling may positively mislead as it will undoubtedly involve a degree of stereotyping.

21 Thirdly, it has not been established that, at the time of Federation, the identification of potential jurors by name and occupation was a matter integral to the knowledge necessary to inform an effective decision to challenge. No authority has been placed before me to establish that this was so as a matter of law. Moreover, an examination of the historical situation, brief as it has necessarily been, has not demonstrated that the provision of names and occupations was available as of right.

22 It appears likely that in the early 1900’s in this State, the name of a potential juror was read out as his card was drawn from the box provided for the purpose (s 59 of Jury Act 1901; s 57 of Jury Act 1912). A similar system operated until 1977 (see s 48 of Jury Act 1977). It does not appear, however, that the occupation of a potential jury member was called out at the time the panel members name was indicated or subsequently. In different States, these were, and are, differing procedures.

23 Further, there is authority for the proposition that in New South Wales, in the early part of the last century, an accused person, except one facing the charge of treason, had no right to a copy of the panel before trial. In R v Baum (1929) 27 (SR) NSW 401 Street CJ (with whom Gordon and Ferguson JJ agreed) held that no such right existed. In the course of the Chief Justice’s careful examination of the matter, he came to the conclusion that no such right existed under English law, at least so far as criminal proceedings, other than treason, were concerned. His Honour also referred to an early decision of Windeyer J in R v Cripps (1) W.N. 112. This, he described, as “clear authority” that “inspection of the jury panel by an accused person or his legal advisors could only be had by permission, in the exercise of a discretionary power, and not as of right”.

24 Act No 41 of 1947 introduced a new sub-section to s 50 of the then Jury Act. It was in these terms:

“(2) No person shall, unless the judge otherwise orders, prior to or during the trial, be allowed to inspect or to obtain a copy of any such panel annexed to a precept directed to the Sheriff requiring him to summon jurors for the trial of any criminal issue in any court”.

The position was otherwise in relation to the panel for a civil jury. Section 50 was replaced in the 1977 legislation by s 40(1) which continued the prohibition on inspection in criminal trials.

25 From this necessarily brief analysis, I conclude that, in New South Wales, inspection of the jury panel was never available as of right in a criminal trial. In addition, it does not appear to have been the custom for occupations to be made available or read out in open court during the empanelment of the jury in a criminal trial. Until the amendments made in 1997, it was customary however for potential jurors in criminal trials to be called, for the purposes of empanelment, by name. This procedure, no doubt, alerted the accused to the names of potential jurors. But, it cannot be said, as Mr Richter submitted, that historically the identification of potential jurors by name and occupation was integral to the knowledge necessary to inform a decision to challenge

26 Fourthly, while it is plainly appropriate to take into account the historical context in interpreting the meaning of “trial … by jury” in s 80, it is, as the High Court has made clear, necessary to bear in mind that the Constitution is an instrument of government that will need to respond to changing circumstances and conditions over time (Brownlee v The Queen per Gleeson CJ, and McHugh J at 285). Their Honours added: -

“It would be wrong to attribute to its reference to the procedure of trial by jury a meaning which treated as frozen in time all the incidents of the procedure as they were known at Federation”.

27 The joint judgment of Gaudron, Gummow and Haynes JJ reflected similar considerations (at 291): -

“ This application for special leave thus turns upon the operation of s 80 of the Constitution and, in particular, the expression "[t]he trial ... shall be by jury". The exposition of the right to jury trial may provide the occasion for the exercise of rhetoric. More prosaically, the constitutional expression identifies a particular legal institution which evolved in England over a long period by a combination of common law and statute and, after some vicissitudes, was adopted and developed in the Australian colonies. That development has continued in the Australian states since Federation; some of that development the applicant seeks to measure against the requirements of s 80”.

28 It may well be accepted that one plain and manifest purpose in introducing the system of identification numbers into the NSW Jury Act was the need to prevent jury tampering and the need to instil greater confidence in jurors that they were likely to receive the protection of substantial anonymity throughout the trial process. It is quite clear, both from the terms of the legislation and the Second Reading Speech (9.4.97) that the anonymity was to extend to prevent the accused from knowing the identity of the jurors. Considered in this way, the changes in the 1997 Act represent an adaption, in accordance with contemporary concerns, of the procedures to be utilised in a modern jury trial. It does not follow that they necessarily represent the curtailment of an essential feature of trial by jury. The changes may be properly described as an incident of procedure in relation to the right of challenge.

29 Fifthly, I do not accept in any event that the ability to be supplied with the names and occupations of panel members for the purposes of considering whether to make a challenge constitutes an essential feature of the institution of trial by jury as understood at common law at the time of Federation. As the majority reasoning, in the dismissal of the application for special leave in Ng v The Queen [2003] HCA 20 noted, at para 9: -

“ Brownlee establishes that, whilst the requirement in s 80 of a trial “by jury” is referrable to that institution as understood at common law at the time of Federation, it is the essential features of that institution which have what might be called a constitutionally entrenched status. Further, Brownlee also indicates that those essential features are to be discerned with regard to the purpose which s 80 was intended to serve and to the constant evolution, before and since Federation, of the characteristics and incidents of jury trial. Accordingly, the circumstances that provisions such as those in ss 14A and 48A of the Juries Act respecting additional jurors were not found in pre-Federation legislation is not determinative” (footnotes omitted).

30 The elimination of a practice of referring to panel members by name does not appear to me to subvert the right of challenge. (Moreover, it does not appear to have ever been a customary entitlement for the accused to be provided with the occupations of panel members in criminal trials in this State). For that reason, the replacement of the name system by an identification number system does not involve the elimination, in a relevant sense, of an essential feature of trial by jury stipulated by s 80. No doubt it may be accepted, for present purposes, that an essential feature of the trial by jury is a right to challenge. The continuance of this feature of trial by jury is entirely consistent with the purposes of s 80. The prohibition of the supply of the name and occupation of a potential juror however, is not inimical to these purposes, as I have said, so as to subvert the right to challenge. Further, in contemporary Australian society, where the population has expanded enormously since 1900, the provision of a name for a panel member, apart from stereotyping him or her, is likely to provide little, if any, information that would assist in making a decision as to whether to challenge. This is so, particularly in our large cities and major regional country centres where trials by jury are generally held. And it is so whether one is considering a challenge to the array; a challenge for cause, or a peremptory challenge.

31 Finally, it is necessary to refer to a number of the arguments that have been pressed on behalf the accused. The need to deliver a prompt judgment has meant that I have not been able to deal with all the arguments advanced as fully as I would have liked. There are, however, a number of arguments that need to be briefly addressed. The first of these is the argument which underpins much of the submission made by Mr Richter. It is the argument to which I have made brief reference at an earlier point in these reasons. The argument proceeds on the assumption, no doubt correct, that jurors are the judges of fact. Based on this principle, the argument continues that, at the very least, the present accused are entitled to know the identity of the judges who try them. It would, according to this argument, be contrary to notions of a proper trial that the judges of fact remained anonymous. For the purpose of the argument, I accept the proposition on which the argument is based. It is however, an argument by analogy. In my view, the analogy simply is not a valid one.

32 A jury is selected randomly, impartially and is intended to be generally representative. This is a totally different process to the allocation of a judge in a judge alone trial. Selection by the jury process does not entitle the accused, as a constitutional matter, to know the names and occupations of the jury members. This is not to say however that the members of the jury are unknown to the accused. They appear openly as part of the panel. Assuming they survive challenges, again an open procedure, they take their place in the jury box. They are present, at all relevant times, throughout the proper processes of the trial. They remain, at all relevant times, within the purview and observation of the accused. They are, in every relevant sense, selected by the accused and known to the accused even though they are not identified by name and their occupations are not known. Further, jurors do not remain unnamed for all purposes. Section 68 of the Jury Act recognises that it may be necessary to identify a jury member for certain purposes. Leaving that matter aside, however, the analogy sought to be drawn by the accused is, for the reasons I have stated, not a valid one. It fails to recognise the important distinction between the nature and function of a judge and jury; and the difference between the selection processes involved, derived as they are from that important distinction.

33 Secondly, there is the argument based on the representative nature of the jury. Senior counsel for the accused argued that it would be impossible, for example, for a judge to determine whether a jury was representative for the purpose of exercising a discretion under s 47A unless the occupations of the jurors were known. The corollary to this argument is that the legal representatives for the accused are also entitled to have the information regarding the occupation of the jurors in the event that they wish to make a submission to the trial judge regarding the possible applicability of s 47A of the Jury Act. In my opinion, these arguments misunderstand the nature and function of the discretion under s 47A. The task of the judge, in the unusual case in which s 47A might be thought to have application, is to make a discretionary judgment based upon his observations of the jury at the conclusion of the challenge process. If it appears to the trial judge, for example, that having regard to the nature of the trial, and considerations especially particular to the position of the accused, that the jury is not representative, he may take action under the section. No doubt, it will be appropriate to invite submissions from counsel in the context of such an application. But, neither the judge’s preliminary views, nor the submissions of counsel, are concerned with the occupations of the jurors. What is at issue is the validity of an impression, gained by physical observation, of the constitution of the jury.

34 In addition, it does not appear to me that a representative jury is one that is necessarily statistically representative. Given that the maximum number of persons on the jury is twelve, it would be statistically impossible to have a jury in fact precisely representative of the various classifications of employment and, for that matter, unemployment in our society. It would be equally impossible to have the jury ethnically representative, in a statistically precise sense, having regard to the ethnic and cultural make up of modern Australian society. What is required is that the jury be representative in a general sense. This is achieved both by the processes that occur before trial of random selection by the Sheriff from the Electoral Rolls. It is further achieved, in court, by the process of challenge and jury selection itself. Section 47A has applicability only where, after these processes, the trial judge has an apprehension, based on his empirical observations, that the jury panel so selected appears unrepresentative.

35 For these reasons, I conclude that ss 29, 37, 38, 48, 67A and 68 of the Jury Act are not incompatible with the command in s 80 of the Constitution.

36 While I accept that the matters raised by Mr Richter QC are arguable matters, I see no real substance in them. Senior counsel for the accused submitted that, whatever view I took of the arguments, the matter was of sufficient importance to warrant its ultimate determination by the High Court prior to the striking of a jury and its delivery of verdict. For that reason, it was submitted that the Court should invite the defence and/or the Crown to move for removal pursuant to s 40 of the Judiciary Act.

37 In my view, however, because of the matters I outlined briefly at the commencement of this decision relating to the circumstances in which the application had been made, I am of the view that the jury should be empanelled and the trial continue on 3 May 2004. Pre-trial matters have been occurring over a more or less continuous period of three months. The empanelment of the jury has already been postponed on two earlier occasions. In my view, the interest of justice requires that the trial proceed without further delay and without fragmentation of the trial process. This I propose to do unless an order is made by the High Court staying the continuance of the trial.

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Last Modified: 07/16/2007